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Sunday, December 4, 2016

Nearly a dozen years after the passage of the PATRIOT Act — rushed through Congress in an atmosphere of fear and intimidation — informed debate over the balance between liberty and security is long overdue.  That includes a public examination of how widely and deeply the National Security Agency (and other elements of the “intelligence community”) may monitor Americans’ telecommunications without violating the Bill of Rights.

But that needed discussion isn’t enhanced by hysteria or the partisan opportunism it encourages.  As others have noted already, the supposed revelation that the NSA is collecting metadata on telephone use in this country isn’t exactly startling news. The fugitive ex-CIA contractor Edward Snowden, who leaked documents concerning that program to the London Guardian and the Washington Post, may yet unveil more startling revelations from his peculiar refuge in China. But anyone paying attention has known about this program since 2006, when USA Today first disclosed its existence.

The most important difference today is that Americans are no longer too frightened by the constant “terror alerts” of the Bush administration to consider the boundaries of surveillance and security.  Rather than hyping the terrorist threat, like George W. Bush and Dick Cheney, President Obama has repeatedly framed a calmer — if equally resolute — attitude toward Islamist extremism.

So while facile comparisons between the Obama and Bush administrations now appear every day in the media, they are quite misleading. Uttered by Republicans and their mouthpieces on Fox News, such arguments are hypocritical as well.

Consider the single most important surveillance controversy of the Bush era, namely the warrantless wiretapping undertaken on the president’s orders. In December 2005, the New York Times revealed that Bush had authorized the NSA to monitor phone calls and emails originating in U.S. territory, without obtaining warrants as required by the Foreign Intelligence Surveillance Act, or FISA. (That’s why it was called “warrantless.”) For the first time since Watergate – and the intelligence reforms resulting from that true scandal — the U.S. government had eavesdropped on Americans’ conversations without seeking the permission of a judge.

Only months before, Bush had claimed publicly that he was a steward of civil liberties and that his agents always got a court order before implementing a wiretap. But his administration had been using warrantless wiretaps ever since the 9/11 attacks.

Those trespasses against liberty went considerably further than the collection of metadata by the NSA.  No reports indicate that the Obama administration violated existing law to eavesdrop on any American — or listened to any calls without the sanction of the special FISA court.

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